On October 26, 2020, the National Treasury Employees Union (NTEU) sued President Donald Trump’s administration in federal court over an executive order which reclassifies a large number of federal employees. Specifically, the executive order signed October 21, 2020, reclassifies certain federal employees previously considered to be “competitive service” employees as “excepted service” employees. The Trump administration claims that this reclassification is necessary to give the president greater control over hiring and termination of federal employees “in positions of a confidential, policy-determining, policy-making, or policy-advocating character.”
With few exceptions, federal employees are hired through either “competitive service” or “excepted service.” The vast majority of people hired by the federal government are hired through competitive service. These are the workers who keep the government functioning on a day-to-day basis. Generally, those hired through “competitive service” must pass a civil service exam to be hired and must be hired through a competitive interview process rather than through appointment by the executive branch. These federal employees are also protected from termination without notice and a hearing.
The requirements as to which federal employees must be treated as “competitive service” are set out by congress in 5 U.S.C. section 3302 -- a law enacted more than fifty years ago. This law does allow the president to recategorize employees from “competitive service” to “excepted service.” However, according to the NTEU, the statute requires that the president first demonstrate why such recategorization is necessary -- a threshold that the NTEU claims the president failed to meet. By recategorizing these employees as “excepted service,” the Trump administration has effectively eliminated both the testing requirement and the requirement that employees first be given notice and a hearing before they can be terminated from employment.
The practice of hiring employees through “competitive service” protects the interests of both the employees in the federal government and the interests of the United States government itself. Specifically, it ensures that federal employees are qualified for the position and that they are protected from termination based upon political affiliation or other discriminatory factors unrelated to work performance. It also ensures that workers necessary to keep the federal government functioning on a day-to-day basis are not replaced every time a new administration takes power.
It is unclear exactly how many federal positions would be affected by this executive order. President Trump has given the heads of each agency within the executive branch ninety (90) days to determine which positions will be reclassified pursuant to the guidelines set out in the executive order. However, this reclassification has the potential to affect thousands of federal employees.
Critics of the executive order claim that it will open the door to rampant cronyism and corruption. For example, Everett Kelly, president of the American Federation of Government Employees said, “ This executive order strips due process rights and protections from perhaps hundreds of thousands of federal employees and will enable political appointees and other officials to hire and fire these workers at will. . . Through this order, President Trump has declared war on the professional civil service by giving himself the authority to fill the government with his political cronies who will pledge their unwavering loyalty to him – not to
America.”
In a statement to Politico, House Oversight Chair Carolyn Maloney indicated that, “President Trump’s new executive order would overturn a 150-year-old precedent that created an expert non-partisan civil service and return us to the ‘spoils system’ of political governance.”
House Speaker Nancy Pelosi tweeted “With the stroke of his pen, the President tries to undermine the value of public service. His action is an outrage and Democrats will fight it. Once again, he proves himself unworthy of the office he holds.”
On the other side, the White House’s website claims that the government will operate more efficiently and securely thanks to these changes.
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